Uganda — Assessing the real ruling about trial of civilians in Court Martials

By Anthony Bazira

The public comments following the ruling of the Courts in the case of the Attorney General vs. Hon. Michael A. Kabaziguruka Constitutional Appeal No. 02 of 2021 have, sadly, been deliberately tilted to suit a wrong narrative.

Most of the commentary has been an attempt at summarising vast amounts of many years of legal study by the learned judges into singular social media posts. It cannot work that way.

At the very least, anyone well-intentioned and objective would read the text of the judgment and take it at face value, as the ruling and recommendations of the judges are quite clear.

Reading strictly what the esteemed Judges wrote reveals the simple truth; a truth that the country must accept as it is put into practice in the manner that the Court envisioned.

The Hon. The Chief Justice, on pages 126-127, states that, “While there is no international treaty, to which Uganda is a party, which contains an express provision prohibiting the trial of civilians by military courts, there is nonetheless international consensus that the jurisdiction of such courts needs to be restricted.”

On page 134 of his ruling, he noted that, “It is clear that in international jurisprudence, even if the move is generally to restrict civilian trial in military courts and tribunals, the practice oscillates between complete abolition of civilian trial in military courts and trial of civilians only in a certain category of cases as an exception.”

And then, on Page 136, he said, “There has been a move to find a middle ground that justifiably limits the category of civilians triable in military courts or tribunals. See: The Yale Draft Principles for Governing Administration of Justice through Military Tribunals; and The Human Rights Committee observed in paragraph 22 of its General Comment No. 32 that the trial of civilians by military or special courts should be done only in exceptional circumstances.

Trials by military courts should be limited to cases where the State party to the Covenant can demonstrate in concreto that recourse to such courts is necessary and justified by “objective and serious reasons” and only where, in relation to the specific class or category of persons and offenses in question, ordinary civil courts are not in a position to undertake such trials.”

Thereafter, stating that, “It is therefore incumbent on the State party, which seeks to try civilians before military courts to demonstrate, in relation to the specific category of persons in question, that:

(a) The ordinary courts are not competent to hear the case.

(b) Other alternative forms of special or high-security civilian courts are inadequate for the task; hence, recourse to military courts is unavoidable.

(c) Referral to military courts guarantees full respect for the rights of the accused, as prescribed by article 14 of the Covenant.”

He further adds, clearly with consideration:

“I take cognisance of the crucial need for military courts for the maintenance of discipline in the military, which thereby ensures the defence of, and security in, Uganda. I also take note of the fact that there may be need to extend jurisdiction of the military courts to cover civilians who fall within the few exceptions in the application of the law as it obtains in other jurisdictions.”

On page 141, he states that “extending the jurisdiction of the military courts to cover civilians in a blanket manner…is unacceptable,” and concludes, on page 148, that: “the provisions for the blanket trial of civilians in the military courts…are unconstitutional. Likewise, the act of the trial of civilians in the civilian Courts under those provisions is unconstitutional.”

With that clarity of thought and analysis laid out, the Hon. Chief Justice recommended, on Page 199:

“(g) Make provision in the UPDF Act for trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by objective and serious reasons, the need and justification for recourse to the military court. This must only apply where, in relation to the specific class or category of persons and offences in question, ordinary courts are not in position to undertake such trial.”

Clearly, he says that trial of civilians can take place in military courts under certain circumstances after the State has gone through steps in Court IF the UPDF Act is amended accordingly.

On to Lady Justice Catherine Bamugemereire’s ruling; on page 26, she noted that whereas the trial of civilians by military courts “is generally considered a violation of international law…meaning civilians should not be tried in military courts unless in very limited circumstances and with strict safeguards in place…”

She then outlines various sections of the UPDF Act that she considers unconstitutional and issues in her order on page 43: “When the necessary legislative amendments are made, it should be imperative that prior to subjecting a civilian, or a person considered so by colour of right, before future courts-martial, a ‘status of the offender determination’ be made to the HIgh Court of Uganda’.

Again, another Judge stated very simply that legislative amendments need to be made so that civilians can be tried in courts-martial should the need be justifiable.

Justice Monica Kalyegira Mugenyi from page 18 lays down her reasoning and states, “I would therefore uphold the majority in the Constitutional Court that civilians that aid and abet military persons in the commission of a service offence do by their actions subject themselves to military law under section 117(1)(g) of the Act.”

She further lists on page 21 that “Non-military persons who subject themselves to military law under the circumstances encapsulated in section 117(1)(g) of the UPDF Act” fall under the jurisdiction of the General Court Martial.

And on the very next page she states, “I do additionally find that the provisions of section 117(1)(g) of the UPDF Act do constitute exceptional circumstances under which the trial of civilians in military courts would be justified, and to that extent is not inconsistent with articles 28(1) and 44(c) of the Constitution.”

Her conclusion?

“The provisions of section 117(1)(g) of the UPDF Act do delineate exceptional circumstances that would justify the trial of civilians in military courts, and is to that extent consistent with the right to a fair trial enshrined in articles 28(1) and 44(c) of the Constitution.

(4) Section 117(1)(h) of the UPDF Act is void for vagueness, and therefore inconsistent with the right to a fair trial as enshrined in article 28(12) of the Constitution.”

A third judge stated the same - under exceptional circumstances, civilians can be tried in military courts.

Lady Justice Elizabeth Musoke, having outlined the jurisdiction of the military courts according to the UPDF Act, declared that “only cases involving members of the UPDF and related to disciplinary offences under Part VI of the UPDF Act should be tried by the General Court Martial and other military Courts, and that only the disciplinary sanctions as described at (c) above can be imposed by the military courts in those cases.”

The disciplinary sanctions she had described in (c) above’ xxxx ←-This is unclear, and I do not have the full ruling myself.

On his part, Justice Mike J. Chibita, on page 3, held that section 117(g) of the UPDF Act constituted exceptional circumstances under which the trial of civilians in military courts would be justified.

Justice Faith Mwondha stated that she agreed with the lead judgment of the Rt. Hon. Chief Justice, as did Justice Percy Night Tuhaise.

The Court, therefore, requires that, should civilians be brought before the General (or other) Court Martial, then the UPDF Act needs to be amended to outline the circumstances under which they can be brought before said CMs.

The writer is a practising Advocate of the Courts of Judicature in Uganda.